Citation Nr: 9910362
Decision Date: 04/14/99 Archive Date: 04/29/99
DOCKET NO. 98-09 032 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUE
Entitlement to an evaluation in excess of 10 percent for
bronchial asthma.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. J. Nottle, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1940 to
October 1945.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 1997 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Louisville, Kentucky (RO), which continued the 10 percent
evaluation assigned the veteran's bronchial asthma.
FINDING OF FACT
The veteran's asthma has not been shown to result in FEV-1 of
56- to 70-percent predicted, or FEV-1/FVC of 56 to 70
percent, or to necessitate daily inhalation or oral
bronchodilator therapy or inhalational anti-inflammatory
medication.
CONCLUSION OF LAW
The criteria for an evaluation in excess of 10 percent for
bronchial asthma have not been met. 38 U.S.C.A. §§ 1155,
5107 (West 1991); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code
6602 (1998).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran contends that the evaluation assigned his
bronchial asthma should be increased to reflect more
accurately the severity of his symptomatology. The
preliminary question before the Board is whether the veteran
has submitted evidence of a well-grounded claim within the
meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so,
whether the VA has properly assisted him in the development
of his claim. A mere allegation that a service-connected
disability has become more severe is sufficient to establish
a well-grounded claim for a higher evaluation. See Caffrey
v. Brown, 6 Vet. App. 337, 381 (1994); Proscelle v.
Derwinski, 2 Vet. App. 629, 632 (1992). As the veteran in
this case has claimed that his disability is more severe than
the evaluation reflects, his claim is deemed well grounded.
In addition, the Board is satisfied that the record contains
all evidence necessary for an equitable disposition of this
claim, and that the RO has fulfilled its duty to assist the
veteran in developing the facts pertinent to his claim.
Disability evaluations are determined by evaluating the
extent to which a veteran's service-connected disability
adversely affects his ability to function under the ordinary
conditions of daily life, including employment, by comparing
his symptomatology with the criteria set forth in the
Schedule for Ratings Disabilities (rating schedule). 38
U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (1998). If two
evaluations are potentially applicable, the higher evaluation
will be assigned if the disability picture more nearly
approximates the criteria required for that evaluation;
otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7.
A 10 percent evaluation for bronchial asthma has been in
effect since December 1948. In February 1997, the veteran
requested an increased evaluation, which the RO denied by
rating decision dated August 1997. The veteran's bronchial
asthma is evaluated pursuant to 38 C.F.R. § 4.97, Diagnostic
Code (DC) 6602. DC 6602 provides that a 10 percent
evaluation is warranted for FEV-1 of 71- to 80-percent
predicted, FEV-1/FVC of 71 to 80 percent, or intermittent
inhalational or oral bronchodilator therapy. A 30 percent
evaluation is warranted if the veteran's asthma causes FEV-1
of 56- to 70-percent predicted, FEV-1/FVC of 56 to 70
percent, or necessitates daily inhalation or oral
bronchodilator therapy or inhalational anti-inflammatory
medication.
In this case, VA outpatient treatment records and emergency
room records from 1995 to 1998 reflect that the veteran is
occasionally seen for bronchial asthma. However, these
records, in conjunction with a March 1997 report of VA
examination, do not establish that the severity of the
veteran's bronchial asthma warrants a higher evaluation. On
VA pulmonary function testing in March 1997, the veteran had
FEV-1 of 94 (pre-drug) and 87 (post-drug) predicted, and FEV-
1/FVC of 79 (pre-drug) and 83 (post-drug). The examiner
indicated that, despite the veteran's suboptimal effort, the
studies were nearly normal. The aforementioned records do
not show, nor does the veteran allege, that his bronchial
asthma necessitates daily inhalational or oral bronchodilator
therapy, or inhalational anti-inflammatory medication. A
higher evaluation is thus not warranted under
DC 6602.
ORDER
An evaluation in excess of 10 percent for bronchial asthma is
denied.
JOHN R. PAGANO
Acting Member, Board of Veterans' Appeals